Research On The Validity Of "Loyalty Agreement" In The Field Of Family Law

The diversity of social life style and the concept of change affects the marriage status,along with the increasing opening of interactions,between lovers and husband and wife as well as the third party,one night stands,extramarital affairs phenomenon is growing,in order to maintain the stability of marriage and family and harmony,adopted by many men and women both parties sign a "loyalty agreement" to protect our love.However,there is no clear legal norm about the "loyalty agreement",and the nature and effectiveness of the "loyalty agreement" are also inconclusive in the theoretical and judicial practice circles.In the theoretical circle,there are arguments about the nature of "loyalty agreement" and "personal relationship agreement" and "property relationship agreement",and there are "valid theory","invalid theory","duality theory" and "natural debt theory" about the validity of "loyalty agreement".Due to theoretical point of view,the judicial practice in the effectiveness of different judge on "loyalty agreement" that produce valid and invalid of two different understanding,and our country "marriage law" and relevant judicial explanation is not about "loyalty agreement" made clear provisions shall be applicable to the law,the marriage and family disputes related to the "loyalty agreement" in similar cases,the phenomenon of the different connection with the sentence.The validity of the "loyalty agreement" can only help the judicial organs to keep the same judgment results in such cases,and establish the judicial prestige among the people,and finally help to improve the concept of the rule of law among Chinese citizens and promote the construction of China under the rule of law.The research on the effectiveness of the marital loyalty agreement in this paper is mainly divided into the following five parts:The first part is the elaboration of the meaning and type of loyalty agreement."Loyalty agreement" is based on the "marriage law" article 4 between husband and wife should be faithful to each other provisions,in the definition of "loyalty agreement",the author introduces the theory of "loyalty agreement" point of view,and introduce different theory viewpoint of rationality and deficiency,"loyalty agreement" shall have the characteristics of the refining.Then,according to the different modes of responsibility assumed by the parties in the agreement,the author divides the types of "loyalty agreement" into personal relationship loyalty agreement,property relationship loyalty agreement and mixed loyalty agreement,and introduces the specific connotation of different types of agreement.The second part is the empirical analysis of the validity determination of "loyalty agreement" in judicial practice.On the one hand,the author objectively presents the current judgment results on the validity determination of "loyalty agreement" through the retrieval and statistics of relevant judgment documents of loyalty agreement.On the other hand,on the basis of big data sample statistics,the author further analyzes the factors affecting the effectiveness of loyalty agreements,which are mainly divided into subject factor,intention expression factor,content factor and marriage dissolution factor.The third part is the analysis of the theoretical basis of the validity of "loyalty agreement".From the perspective of marriage contract and benefit distribution theory,this paper expounds the positive effect of "loyalty agreement".First,under the influence of marriage contract view,the recognition of "loyalty agreement" effectively contributes to the realization of the principles and values of freedom,equality and justice in legal theory.Second,influenced by the theory of distribution of benefits,the recognition of the validity of "loyalty agreement" can achieve the purpose of marriage stability and serve as a warning and guidance to the marriage parties.The fourth part is the design of the rules for the validity determination of "loyalty agreement".According to the argumentation in the second and third parts of this paper,the author believes that the validity of "loyalty agreements" should be recognized in principle,but the validity of different types of agreements should be judged separately.According to the type and content of "loyalty agreement" in judicial practice,the author formulates specific and clear judgment rules for the determination of the agreement’s validity from the five aspects of the subject,object,content,form elements and the premise of the determination of the validity of the agreement,in order to expect the court to judge similar cases together in relevant cases.In a word,this paper summarizes the factors that affect the validity of "loyalty agreement" through statistical analysis of relevant judicial judgments on "loyalty agreement",and makes clear rules for the effective identification of "loyalty agreement" through theoretical analysis of marriage contract view and benefit distribution theory.